Why Do We Tolerate Revenge Porn?

A new bill in California tries to address the problem, but doesn’t go far enough.

Victims of revenge porn need a way to hold their tormentors accountable.

Photo by Ammentorp Photography/Shutterstock

Revenge porn is a scourge. It’s the term for posting sexual photos of people without their consent (often women, often exes). If you’re tempted to wave this off as the kind of ephemeral cyberharm that drifts away on its own, don’t. A couple of years ago, I interviewed a woman whose ex-boyfriend, she suspected, had posted nude photos of her on a site called Private Voyeur. The caption included the words “Jap Slut,” her name, her place of work, and the city where she lives. A stranger told her about the photos. She started fearing that one of her co-workers or clients would ask about the photos—and in fact, one did. And when she Googled herself, the Jap Slut post showed up near the top, which meant that anyone looking for her online would see it.

In her forthcoming book Hate 3.0, University of Maryland law professor Danielle Citron tells the story of a Florida graduate student who found herself the subject of revenge porn—nude photos and a sexual video. A profile including the images, as well as her name and email address, appeared on a website for soliciting sex from strangers, and then someone emailed the photos to her boss and her co-workers. Search for her name on Google, and the first 10 pages to come up were entry after entry of the images and humiliating captions. The woman ended up changing her name to Holly Jacobs: She felt she had no choice because she “wanted a professional future,” she told Citron. And then the local government posted her request for the name change online, ruining her chance to start over.

Jacobs founded the website End Revenge Porn, and she also tried to fight back by going to the local police the FBI, and by contacting the sites that hosted the nude photos and the video. None of it worked. There was nothing law enforcement could do, she was told. And because the site operators had no legal responsibility to take the revenge porn down, trying to get the images deleted turned into “a nightmare game of whack-a-mole, which she kept losing,” Citron writes.

This can’t be right—revenge porn cannot be allowed to be a harm without a remedy. That’s why there’s been a wave of attention for a California bill that aims to address it. The problem is that the bill only goes halfway. It makes it a misdemeanor offense to post revenge porn only if a prosecutor shows that the poster intended to inflict emotional distress, rather than treating the act of posting a sexual photo without consent as an objectively harmful invasion of privacy. And the punishment wouldn’t apply if the subject of the photo took the picture herself, which means it wouldn’t help people whose exes persuaded them to hand over photos as a sign of trust. As Amanda Marcotte argues, “Just as we recognize that two people having had consensual sex doesn't mean later encounters are necessarily consensual, we should recognize that a picture offered as a consensual sexual gesture can later be turned into a tool to harass and abuse—and there should be penalties for that.”

Here’s a better model bill that doesn’t have the flaws of the one in California. The bill makes it a crime to “disclose” an image, video, or recording involving nudity or sexual contact without the subject’s consent, “under circumstances in which the person has a reasonable expectation of privacy.” Consenting to the photo within a private relationship doesn’t meaning consenting to public disclosure. The author, University of Miami law professor Mary Anne Franks, says that when people tell her they oppose it, they often start “waving their hands about free speech. But when you ask them how this violates the First Amendment, they can’t tell you why.” That’s because it really doesn’t. Eugene Volokh, a strong free-speech advocate who teaches law at UCLA, doesn’t see a constitutional problem with “a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication.”

Franks thinks that the real objection to cracking down on revenge porn is that “we’re still trivializing harm against women.” Her argument resonates when you think about this question: Why can’t victims sue the pants off the men who post these photos, or the sites that host them? For starters, because the federal Communications Decency Act poses all kinds of obstacles. If the posters hide their identities—and most do—victims have to go through the expense and difficulty of getting a court order to unmask them. If the press picks up the story, the victim will just be drawing more attention to her own embarrassment (unless she’s allowed to sue under a pseudonym, a right that the woman who was the subject of the Jap Slut post successfully lobbied for in Hawaii). “Civil suits put all the burden on victims,” Franks told me. “The person who is putting up the pictures isn’t going to be afraid. They’ll know there’s no real threat, or maybe they don’t have any money anyway.”

Criminal laws are another route to deterrence. At the moment only New Jersey has one on the books. The bill in California, if it becomes law, would be the second. (Gov. Jerry Brown hasn’t said whether he’ll sign it.) Citron and Franks want to see a ban on revenge porn written into the federal law that already bars cyberstalking.

And they would also like to “shut down the channels of distribution,” as Franks puts it. This would mean making it easier to go after the sites that devote themselves to hosting revenge porn—and make lots of money in the process. They’re protected by the courts’ interpretation of Section 230 of the Communications Decency Act, which has been read to give a free pass to sites and Internet service providers that knowingly host content, posted by a user, that’s defamatory or illegally invades someone’s privacy.

This part of the CDA is often lauded for letting a thousand free-speech blossoms bloom online. Censorship would break the Internet! In fact, the CDA allows for big exceptions to its anything-goes rule. They just don’t happen to be the exceptions that help people like Holly Jacobs. If you host a website and you get notice that content on it violates someone’s copyright, you have a choice: You can take it down, or defend yourself. Similarly, if you host content that violates federal law, like child pornography or identity theft, you have to take it down once you’re on notice. Why not shield the victims of revenge porn in the same way? “We just don’t care about this harm as much,” Franks says.

Reading Citron’s book, which is full of stories of people for whom cyberharassment and stalking turned into an utterly real-world nightmare, convinced me that she and Franks are right—and that we have to care more. If you truly go on a concerted campaign to ruin someone’s online reputation, you can diminish their offline lives in all kinds of ways. They become harder to hire and to trust. Why take a chance on someone you’ve heard bad or questionable things about? Why take their word that it’s all an awful bout of bad luck or a misunderstanding?

At the moment, the most successful tactic I’ve heard of for going after revenge porn is also a completely quixotic one. For years the king of this shoddy business, Hunter Moore, ran the site Is Anyone Up? When women protested, Moore would post their imploring messages and caption the photos with their names, addresses, or work history. “It’s stupid not to monetize it,” he boasted, clearly reveling in the press attention.

James McGibney, an ex-Marine with a master’s degree in criminal justice who runs the site Bullyville, met Moore through mutual press contacts and persuaded him to sell Is Anyone Up? for a relatively small sum of money. (Less than $15,000 is my guess). McGibney shut Moore’s site down, and then Moore turned on him, calling him a pedophile, among other things, online. McGibney sued for defamation. Moore failed to defend himself in court, and in March the judge entered a $250,000 judgment against him, plus legal fees.

That makes for a satisfying morality tale. But it’s not exactly a systematic solution. McGibney’s creativity is very much welcome—but it’s also a sign of how far the law has to go.